Part 2 of 2: Supreme Court Rules That "Supervisors" Under Title VII Must Have Power to Take Tangible Employment Actions
On Monday, we blogged about the first of two recent U.S. Supreme Court decisions interpreting Title VII of the Civil Rights Act of 1964 (“Title VII”), University of Texas Southwestern Medical Center v. Nassar. Today, we’ll discuss the second decision, Vance v. Ball State University, which addressed who is a “supervisor” for vicarious liability purposes under Title VII. The decision provides clarity in a previously muddled area of law, and has important implications for employer liability for workplace harassment under Title VII.
As you probably know, Title VII prohibits discrimination in employment based on an individual’s race, color, religion, sex, or national origin, and similarly prohibits harassment resulting in a hostile work environment based on these characteristics. The plaintiff in Vance was a catering assistant who filed a lawsuit claiming that she had been subjected to a racially hostile work environment at the hands of a catering specialist in her department. Although the parties disagreed about whether the specialist was a supervisor, they did agree that she lacked authority to hire, fire, demote, promote, transfer or discipline the plaintiff. The district (trial) court found that without this authority, the specialist was not a supervisor for whose actions the employer could be vicariously liable under Title VII.
But wait, you might be asking—why would supervisory status matter in the first place? In short, it matters a lot. An employer’s liability for unlawful harassment that creates a hostile work environment often depends on whether the harassing employee is a supervisor. If the harassing employee is not a supervisor, the employer is liable for his or her conduct only if the employer was negligent about the offensive behavior. In other words, if an employee is harassed by a co-worker or a non-supervisor, the employer is only responsible for the resulting hostile work environment if the employer knew or should have known about the harassment and failed to address it.
An employer’s liability for a supervisor’s actions, on the other hand, is much broader. There, the employer is automatically vicariously liable if: (1) the supervisor takes a “tangible employment action,” which includes actions such as hiring, firing, demoting, or significantly changing benefits; or (2) the supervisor does not take a tangible employment action, but the employer is unable to establish an affirmative defense to liability. Employers can establish an affirmative defense by showing that (1) they exercised reasonable care to prevent and promptly correct any harassing behavior; and (2) the alleged harassment victim failed to take advantage of any preventative or corrective opportunities that were provided. (This defense is commonly known as the Faragher/Ellerth defense, named after two Supreme Court decisions from the late 1990s.)
Turning back to Vance, the Supreme Court ultimately agreed with the district court and found that a supervisor under Title VII must have the power to take “tangible employment actions” against the alleged victim. If the alleged harasser does not have such authority, the employer is not vicariously liable, and the victim must show that the employer was negligent in handling the situation, i.e., that it knew about the harassment and did nothing to stop it.
Practically speaking, what does this mean for employers? As an initial matter, it is unclear how the reasoning in Vance will be applied to other anti-discrimination statutes, such as ORS chapter 659A (Oregon’s Title VII equivalent). Given that chapter 659A is similar to Title VII, however, and that Oregon courts often look to Title VII cases for guidance, Vance will serve at the least as persuasive authority in cases where only state law claims are asserted.
If Vance applies, an employer has a good chance of escaping liability if the alleged harasser cannot hire, fire, discipline, demote, or take similar action against the victim—so long as the employer can show that it had no knowledge of the harassment or that it reasonably responded to any incidents it was aware of. Vance also provides a clear standard as to who is a supervisor, making it more likely that questions concerning the alleged harasser’s status (and the employer’s vicarious liability) will be resolved as a matter of law before the case gets to trial. What the case does not mean is that an employer can never be liable for the actions of its lower-level employees (or that victims are without recourse unless their harasser is a supervisor). If the employer is negligent, a harassment victim will still have a cause of action against the employer.
With Vance in mind, employers should review job descriptions to ensure that they accurately reflect employees’ responsibilities, distinguishing those who have the power to hire, fire, etc. from those who merely control the day-to-day schedules or assignments of others. Employers are further advised, as always, to provide comprehensive harassment and discrimination training to employees (including supervisors), and to respond promptly if there is any indication that unlawful conduct is occurring in the workplace.
11th Circuit Disagrees With NLRB And Finds Nurses Are "Supervisors" In Lakeland Health Care Decision
Several weeks ago the U.S. Court of Appeals for the 11th Circuit weighed in on the ongoing debate in labor law over the definition of who is a “supervisor,” and therefore not eligible to join a union, under the federal National Labor Relations Act (“NLRA”). The opinion, Lakeland Health Care Associates , is but the latest installment in an area of labor law that has been evolving over at least the past decade. While this line of cases, including Lakeland Health Care, are specific to the “supervisor” status of nurses working in the residential care industry, the relevant legal tests are the same for all industries. Employers who may wish to oppose unionization efforts among employees it believes are supervisors will therefore want to continue to pay close attention to these cases to see what could be done to maximize the chance that the National Labor Relations Board (“NLRB” or “Board”) would also find those employees are supervisors.
LPNs Supervise Other Employees, But Are They “Supervisors” Under The NLRA?
As with many things in labor law, determining who is a “supervisor” is rarely straightforward: simply giving someone the title of “supervisor” is never enough. In many cases employees may have only partial supervisory authority—the issue in cases like Lakeland Health Care is whether the employees had enough supervisory authority to be “supervisors” under the NLRA.
Lakeland Health Care operates residential care facilities (until recently known commonly as “nursing homes”). Consistent with industry-wide practice, Lakeland Health Care staffs its facility primarily with Certified Nursing Assistants (“CNAs”), who perform most of the day-to-day work providing physical care to residents—such as feeding, dressing, bathing, turning, etc.—and charge nurses, usually Licensed Practical Nurses (“LPNs”) or sometimes Registered Nurses (“RNs”), who provide basic medical care to residents such as administering medication, inserting or monitoring intravenous lines, and performing blood draws. Also consistent with industry practice, the RNs and LPNs have general day-to-day supervision over the CNAs with whom they work each shift, but do not have independent hire/fire authority.
Section 2(11) of the NLRA and related case law has a very detailed and complex definition of who is a “supervisor.” To summarize, a “supervisor” is any employee who has the authority to hire, fire, discipline, or assign work to other employees, or to effectively recommend any of those actions, or who “responsibly direct[s]” other employees in their day-to-day work. The supervisor must also use “independent judgment” in performing those supervisory functions and not merely report employee conduct to higher level managers to take action. Those who meet the "supervisors" tests are not "employees" eligible to organize into unions under the NLRA.
After reviewing the testimony of company witnesses, and employee handbooks and written job descriptions, the 11th Circuit concluded, in contrast to the NLRB, that the Lakeland Health Care LPNs were supervisors under that NLRA definition. Specifically, the Court found that even though LPNs could not hire or fire CNAs, they could independently issue them written and verbal coaching (i.e., discipline) and assign work. The Court also found that LPNs “responsibly directed” CNAs in their day-to-day work in that the LPN ultimately could be held responsible, and disciplined, if the CNAs failed to provide adequate care to residents. The Court found that the LPNs exercised sufficient “independent judgment” in performing all of these functions with respect to CNAs.
A Brief Recent History Of “Supervisor” Status
The supervisory status of charge nurses in the residential care industry has been the subject of much labor litigation over the past 10 years (perhaps because that industry has specifically been targeted for organization drives by many major national and local unions). While the reasoning in Lakeland Health Care summarized above may sound straight-forward, other cases with nearly identical facts have reached very differently results. These differing outcomes make it difficult for employers to know when employees are supervisors, and appear to be largely influenced by two factors.
First, the NLRB’s own interpretation of the law can change dramatically over time depending on whether a pro-union Democrat or pro-business Republican is President. For example, in 2006 the Bush-era Board issued employer-friendly decisions that broadly applied the “supervisor” exception in its Oakwood Health Care “trilogy” (also involving the status of charge nurses in residential care facilities). In so doing, Oakwood Health Care departed from Clinton-era NLRB decisions that had made it much more difficult to show that employees like LPNs are “supervisors.” In recent years, the Obama Board has distinguished Oakwood Health Care to turn back the clock to the broader Clinton-era interpretations of “supervisor.” Perhaps most difficult, the NLRB rarely outright reverses earlier opinions, but instead tries to find subtle factual nuances to harmonize its decisions, even though the different outcomes sometimes seem to be based on very similar factual patterns.
Second, there is also tension between the (generally pro-union) NLRB and the federal circuit courts, which have jurisdiction to reverse those decisions and may tend to be more pro-employer. For example, the 11th Circuit in Lakeland Health Care specifically held that the employer must only show that the LPNs have the authority to perform the supervisory functions (through written job descriptions, handbooks, and the testimony of managers), not that they demonstrate a practice of actually having used that authority in specific cases. That holding may be a departure from recent cases where the Board found under virtually identical facts that charge nurses were not supervisors, because, even though written policies and job descriptions showed they had supervisory authority, they did not actually discipline CNAs, or did not do so often enough.
Back To The Future: More Conflicting Decisions To Come?
It will be interesting to see how the Obama Board will respond to the 11th Circuit’s opinion in Lakeland Health Care. As we have blogged about repeatedly, the current Obama Board has been very active, tends to be pro-union, and is not afraid of taking positions potentially at odds with federal courts, even the U.S. Supreme Court. And the NLRB could only be emboldened now that President Obama has won re-election. It is therefore difficult to see how this tug-of-war will play out. Maybe the only thing that is certain is that more fireworks are likely over the next few months and years in this area.
In the meantime, Lakeland Health Care may offer some help to employers who wish to oppose unionization efforts involving potentially supervisory employees. While circuit court opinions are not technically binding on the NLRB or its regional offices, they can be persuasive authority. Also, while this line of cases is particularly relevant for employers like Lakeland in residential care, the “supervisor” tests are the same everywhere. Employers in all industries may wish to pay particular attention to the weight the 11th Circuit gave to the handbooks and written job descriptions, which helped show that the LPNs in that case had the necessary supervisory authority, and revise their own written job descriptions if needed. If you find yourself in an NLRB hearing involving the supervisory status of employees, the quality of your written job descriptions and handbooks could help make the difference in proving your case.